Perkins v. Myrtle Hilliard Davis
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motions for appointment of counsel (Docs. 32 & 49) are DENIED. IT IS FURTHER ORDERED that Plaintiffs motion for extension of time to reply to Defendant's interrogatories and req uests for production of documents (Doc. 54) is GRANTED. Plaintiff shall, by Wednesday, August 12, 2015, respond to Defendant's interrogatories and requests for production of documents. IT IS FURTHER ORDERED that Defendant's Motion for Sanctions and Dismissal (Doc. 46) is DENIED, without prejudice. If Plaintiff fails to comply with this order or with any future orders, Defendant may renew its motion at a later date.. Signed by Magistrate Judge Shirley P. Mensah on 7/29/15. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERRY PERKINS,
Plaintiff,
vs.
MYRTLE HILLIARD DAVIS,
d/b/a FLORENCE HILL, and
INEZ LAMPKIN,
Defendants.
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Case No. 4:14-CV-1755-SPM
MEMORANDUM AND ORDER
This case is before the Court on Plaintiff’s renewed motions for appointment of counsel
(Docs. 32 & 49); Defendant’s Motion for Sanctions and Dismissal (Doc. 46); and Plaintiff’s
Request for Extension of Time to Reply to Defendant’s Interrogatories and Request for
Production of Documents (Doc. 54).
I.
BACKGROUND
On October 16, 2014, Plaintiff filed his pro se Complaint in this case, asserting
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §§ 2000e, et seq. (Doc. 1). On the same day, he filed a motion for appointment of
counsel. (Doc. 3). On October 31, 2014, the Court denied Plaintiff’s motion for appointment of
counsel, without prejudice. (Doc. 8). On March 3, 2015, Plaintiff filed a “Memorandum in
Support of Appointment of Counsel” (Doc. 32); however, due to a docketing error, this was not
entered as a motion, and the Court did not recognize that Plaintiff was renewing his motion for
appointment of counsel. On March 25, 2015, the Court entered a Case Management Order
requiring the parties to make their Rule 26(a)(1) disclosures no later than April 24, 2015 and
setting forth other discovery deadlines. (Doc. 38). In a motion to compel filed May 22, 2015,
Defendant informed the Court that Plaintiff had not served any Rule 26(a)(1) disclosures and had
not provided any answers, responses, or objections to Defendant’s discovery requests. (Doc. 40).
The Court held a hearing on the motion, and Plaintiff failed to appear. (Doc. 43). On June 4,
2015, the Court granted the motion and ordered Plaintiff to provide Defendant with Rule 26
disclosures and responses to discovery requests by June 18, 2015. (Doc. 44).
On June 22, 2015, Defendant filed the instant motion for sanctions and dismissal, stating
that Plaintiff has still failed to provide Defendant with any Rule 26 disclosures or discovery
responses. Defendant requests that the Court dismiss all of Plaintiff’s claims, with prejudice, due
to Plaintiff’s failure to comply with the Court’s orders. On June 25, 2015, the Court entered a
Show Cause Order giving Plaintiff until July 10, 2015 to file a response explaining why his case
should not be dismissed. On July 8, 2015, Plaintiff filed a response in which he again requested
that counsel be appointed. (Doc. 49).
On July 22, 2015, Plaintiff filed a motion for extension of time (until July 31, 2015) to
respond to Defendant’s interrogatories and requests for production. Defendant opposes the
motion. (Doc. 55).
II.
DISCUSSION
A. Plaintiff’s Motions for Appointment of Counsel
There is no constitutional right to appointed counsel in civil cases. Phillips v. Jasper
County Jail, 437 F.3d 791, 793 (8th Cir. 2006); Slaughter v. City of Maplewood, 731 F.2d 587,
590 (8th Cir. 1984). Title VII provides that a court may appoint counsel “in such circumstances
as the court may deem just.” 42 U.S.C. § 2000e-5(f)(1). In evaluating a motion to appoint
counsel in a Title VII case, the Court considers “(1) the plaintiff’s financial resources, (2) the
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plaintiff’s efforts to secure counsel, and (3) the merits of the discrimination claim.” Slaughter v.
City of Maplewood, 731 F.2d 587, 590 (8th Cir. 1984). The Court may also consider “whether
the nature of the litigation is such that plaintiff as well as the court will benefit from the
assistance of counsel.” Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1005 (8th Cir.
1984).
Here, after consideration of the relevant factors, the Court finds that appointment of
counsel is not warranted at this time. Plaintiff has been granted in forma pauperis status and has
listed several attorneys he contacted in an effort to secure counsel, so the first two factors weigh
in favor of appointment of counsel. It is difficult to assess the merits of Plaintiff’s claims at this
early stage of litigation, when the record contains little more than Plaintiff’s Complaint and
Defendant’s motion to dismiss based on noncompliance with court orders. However, after review
of all of the documents filed by the parties, the Court finds that the nature of this litigation is not
such that counsel would be of particular benefit to the Court or to Plaintiff at this time. Neither
the factual issues nor the legal issues in this case are complex. The facts involve a small number
of actors and a discrete time frame. Plaintiff’s Amended Complaint contains a detailed
description of the facts giving rise to his claims, indicating that he is capable of investigating and
articulating the relevant facts. Moreover, a review of Plaintiff’s other filings in the case indicate
that Plaintiff is capable of understanding Defendant’s motions and making relevant arguments in
support of his claims and positions. Thus, after reviewing the record in light of the relevant
standards, the Court does not find that appointment of counsel is warranted at this time.
B. Plaintiff’s Motion for Extension of Time
Plaintiff requests an extension of time (until July 22, 2015) to respond to Defendant’s
interrogatories and requests for production of documents. He states that has not participated in
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the discovery process because he does not know how. Plaintiff also notes that he filed a motion
for appointment of counsel on March 3, 2015, that had not been addressed. Defendant opposes
the motion, arguing that Plaintiff has not provided any legitimate justification for his refusal to
participate in discovery and comply with the Court’s orders.
The Court will grant Plaintiff’s motion for extension of time. It appears that Plaintiff may
not have been participating in the discovery process because he was waiting for the Court to rule
on his renewed motion for appointment of counsel. In light of Plaintiff’s pro se status and the
Court’s late ruling on that motion, the Court finds sufficient justification exists to permit Plaintiff
a brief additional period of time in which to respond to Defendant’s discovery requests.
However, Plaintiff should be aware that he is required to comply with this Court’s orders and
with the Federal Rules of Civil Procedure—whether or not he has counsel and whether or not
there is a motion for appointment of counsel pending. It is well established that the fact that a
plaintiff is representing himself does not excuse him from compliance with court orders or the
Federal Rules of Civil Procedure. Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000);
Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996). Plaintiff
may not simply ignore future discovery requests or orders based on his lack of counsel.
C. Defendant’s Motion for Sanctions and Dismissal
Defendant requests that the Court dismiss all of Plaintiff’s claims, with prejudice, due to
Plaintiff’s failure to comply with this Court’s Case Management Order and with this Court’s
order requiring Plaintiff to provide Defendant with Rule 26 disclosures and responses to
discovery requests by June 18, 2015. In his response, Plaintiff argues that the case is complex
and that the Court should appoint counsel.
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The Court is not unsympathetic to Defendant’s position. Plaintiff’s noncompliance with
this Court’s orders has rendered Defendant unable to conduct discovery. It has also required
Defendant to expend time and resources preparing motions and attending hearings in an effort to
get Plaintiff to comply. However, as discussed above, it appears that Plaintiff’s inaction in this
case may have been because he was waiting for the Court to rule on his renewed motion for
appointment of counsel. In light of Plaintiff’s pro se status and the Court’s late ruling on that
motion, the Court does not find a sufficient basis for dismissing the case at this time. However,
Plaintiff is warned that future violations of the Court’s orders may result in dismissal of this
action. See Fed. R. Civ. P. 37(b)(2)(A). See also Schoffstall v. Henderson, 223 F.3d 818, 823 (8th
Cir. 2000) (court may consider sanction of dismissal “if there is (1) an order compelling
discovery, (2) a willful violation of that order, and (3) prejudice to the other party”).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motions for appointment of counsel (Docs.
32 & 49) are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion for extension of time to reply to
Defendant’s interrogatories and requests for production of documents (Doc. 54) is GRANTED.
Plaintiff shall, by Wednesday, August 12, 2015, respond to Defendant’s interrogatories and
requests for production of documents.
IT IS FURTHER ORDERED that Defendant’s Motion for Sanctions and Dismissal
(Doc. 46) is DENIED, without prejudice. If Plaintiff fails to comply with this order or with any
future orders, Defendant may renew its motion at a later date.
/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 29th day of July, 2015.
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